in Re Humberto Rosales Cruz

• Court: Court of Appeals of Texas
• Decided: July 3, 2019
• Docket: 13-19-00332-CR
• Status: Published

Opinion

NUMBER 13-19-00332-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE HUMBERTO ROSALES CRUZ

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Perkes Memorandum Opinion by Justice Perkes1

Relator Humberto Rosales Cruz, proceeding pro se, filed a petition for writ of

mandamus in the above cause through which he seeks to compel the trial court to rule

on relator’s motion seeking free copies of the reporter’s record and clerk’s record in cause

number CR-2827-14-H(1) in the 389th District Court of Hidalgo County, Texas.

To be entitled to mandamus relief, the relator must establish both that he has no

adequate remedy at law to redress his alleged harm, and that what he seeks to compel

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). is a purely ministerial act not involving a discretionary or judicial decision. In re Harris,

491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding); In re McCann, 422

S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet

both requirements, then the petition for writ of mandamus should be denied. State ex rel.

Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.

App. 2007).

It is the relator’s burden to properly request and show entitlement to mandamus

relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.

proceeding) (“Even a pro se applicant for a writ of mandamus must show himself entitled

to the extraordinary relief he seeks.”). In addition to other requirements, the relator must

include a statement of facts supported by citations to “competent evidence included in the

appendix or record” and must also provide “a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the appendix or record.”

See generally TEX. R. APP. P. 52.3. As the party seeking relief, the relator has the burden

of providing the Court with a sufficient mandamus record to establish his right to a writ of

mandamus. Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig.

proceeding) (Alcala, J. concurring); Walker, 827 S.W.2d at 837; see TEX. R. APP. P.

52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the

required contents for the record).

In this case, the petition for writ of mandamus fails to comply with the Texas Rules

of Appellate Procedure because it, inter alia, lacks an appendix or record. See generally

TEX. R. APP. P. 52.3. We further note that an indigent criminal defendant is generally not

entitled to a free transcription of prior proceedings for use in pursuing post-conviction

2 habeas relief. In re Trevino, 79 S.W.3d 794, 796 (Tex. App.—Corpus Christi–Edinburg

2002, orig. proceeding); In re Strickhausen, 994 S.W.2d 936, 937 (Tex. App.—Houston

[1st Dist.] 1999, orig. proceeding); see In re Coronado, 980 S.W.2d 691, 693 (Tex. App.—

San Antonio 1998, orig. proceeding). Accordingly, we deny the petition for writ of

mandamus. See In re Harris, 491 S.W.3d at 334; In re McCann, 422 S.W.3d at 704.

GREGORY T. PERKES Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 3rd day of July, 2019.